Supreme Court Vacates Jane Doe Child Pornography Restitution Case

Supreme CourtWe previously discussed the case of Doyle Randall Paroline, who pleaded guilty in Texas in 2009 to possessing child pornography. He downloaded hundreds of images and two were found to be child pornography dedicating the abuse of Amy. After pleading guilty, Paroline was hit by $3.4 million in restitution damages for Amy even though he had no role in her victimization nine years earlier or any role in the production or distribution of the two photos. The United States Court of Appeals for the Fifth Circuit found that the federal restitution law does not require “proximate causation” — a critical limitation in torts and criminal law that ensures that liability is confined to those parties immediately responsible for injuries. I have criticized the expansion of restitution in this area for years and I spoke with NPR’s On The Media on the case. The Court has now ruled and reversed the Fifth Circuit in a 5-4 decision. As discussed with regard to yesterday’s decision in the Michigan affirmative action case, my Supreme Court class votes on the merits and predicted outcome of the major cases of the term before the Supreme Court. On this occasion, the vote was 8 to affirm and 6 to reverse. The latter “reversal” is closest to the outcome in the case. On prediction, the vote was 11 to 2 in favor of affirming so we were way off on the prediction on this one.

Amy was eight when she was raped by her uncle, who then posted the pictures of the crime. James Marsh in a White Plains, N.Y., lawyer has made something of a cottage industry in sending demands for restitution on her behalf in any case that involves an image of Amy or other abuse victims. The firm reportedly sent out hundreds of these demands on the theory that viewing the images is part of the victimization. There is certainly a good-faith argument in support of such damages. However, the theory would cut restitution away from its historical moorings. It is would also eliminate the fundamental role played by proximate cause. There are millions of images floating around the Internet and people can now download hundreds with a single click. While I often do not believe many defendants who say that their possession was accidental, it is possible to come into possession without true intent. However, the law as currently written makes a defense difficult and the sentences are so high that most defendants plead guilty to avoid ten years or more in jail. Now, with a new restitution ruling, they face bankruptcy as well as longer sentences.

The Supreme Court ruled that a victim of child pornography may be entitled to restitution under 18 USC § 2259 but only to the extent the defendant’s offense proximately caused the victim’s losses. In an opinion by Justice Anthony Kennedy, the court found that the the Fifth Circuit’s interpretation was wrong, vacated the decision below and remanded the case for further consideration. Chief Justice John Roberts filed a dissenting opinion, joined by Justices Antonin Scalia and Clarence Thomas. Justice Sonia Sotomayor also filed a dissenting opinion. The majority is an eclectic group (as is the dissenting justices) that do not follow the classic left/right divide.

The case turned on the question of proximate causation as understood in both criminal law and torts:

Every event has many causes . . . and only some of them are proximate, as the law uses that term. So to say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result. The idea of proximate cause, as distinct from actual cause or cause in fact, defies easy summary. It is “a flexible concept,” Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. 639, 654 (2008), that generally “refers to the basic requirement that . . . there must be ‘some direct relation between the injury asserted and the injurious conduct alleged,’” CSX Transp., Inc. v. McBride, 564 U. S. ___, ___ (2011) (ROBERTS, C. J., dissenting) (slip op., at 3) (quoting Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 268 (1992)). The concept of proximate causation is applicable in both criminal and tort law, and the analysis is parallel in many instances. 1 W. LaFave, Substantive Criminal Law §6.4(c), p. 471 (2d ed. 2003) (hereinafter LaFave). Proximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct. See, e.g., ibid.; 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm §29, p. 493 (2005) (hereinafter Restatement). A requirement of proximate cause thus serves, inter alia, to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity. Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 838–839 (1996).

The majority found that the Fifth Circuit disregarded a core element of proximate causation. The well-reasoned and well-written treatment explores such tests as the But-For Test, which are rejected in this context. The opinion actually goes into a detailed discussion of torts theories of causation (I actually included Paroline in this year’s torts class for that reason). The Court rejects the sweeping causation theory of both the Obama Administration and the victim:

Contrary to the victim’s suggestion, this is not akin to a case in which a “gang of ruffians” collectively beats a person, or in which a woman is “gang raped by five men on one night or by five men on five sequential nights.” Brief for Respondent Amy 55. First, this case does not involve a set of wrongdoers acting in concert, see Prosser and Keeton §52, at 346 (discussing full liability for a joint enterprise); for Paroline had no contact with the overwhelming majority of the offenders for whose actions the victim would hold him accountable. Second, adopting the victim’s approach would make an individual possessor liable for the combined consequences of the acts of not just 2, 5, or even 100 independently acting offenders; but instead, a number that may reach into the tens of thousands. See Brief for Respondent Amy 65.

One of the more interesting asides in the opinion deal with the suggestion that restitution could be treated as a punishment for the purposes of the Eighth Amendment. The Court has steadily gutted the protections of the Eighth Amendment in the view of many constitutional criminal law professors. Yet, the majority indicated that restitution could be treated as not just failing under the Eighth Amendment but a violation of the amendment if it were given the meaning advocated by the Administration and the victim:

The reality is that the victim’s suggested approach would amount to holding each possessor of her images liable for the conduct of thousands of other independently acting possessors and distributors, with no legal or practical avenue for seeking contribution. That approach is so severe it might raise questions under the Excessive Fines Clause of the Eighth Amendment. To be sure, this Court has said that “the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government.” Browning-Ferris Industries of Vt., Inc.
v. Kelco Disposal, Inc., 492 U. S. 257, 268 (1989). But while restitution under §2259 is paid to a victim, it is imposed by the Government “at the culmination of a criminal proceeding and requires conviction of an underlying” crime, United States v. Bajakajian, 524 U. S. 321, 328 (1998). Thus, despite the differences between restitution and a traditional fine, restitution still implicates “theprosecutorial powers of government,” Browning-Ferris, supra, at 275. The primary goal of restitution is remedial or compensatory, cf. Bajakajian, supra, at 329, but it also serves punitive purposes, see Pasquantino v. United States, 544 U. S. 349, 365 (2005) (“The purpose of awarding restitution” under 18 U. S. C. §3663A “is . . . to mete out appropriate criminal punishment”); Kelly, 479 U. S., at 49, n. 10. That may be “sufficient to bring [it] within the purview of the Excessive Fines Clause,” Bajakajian, supra, at 329, n. 4. And there is a real question whether holding a single possessor liable for millions of dollars in losses collectively caused by thousands of independent actors might be excessive and disproportionate in these circumstances. These concerns offer further reason not to interpret the statute the way the victim suggests.

The majority is less compelling when it comes to the test. The Court says that some restitution is appropriate and leaves the lower courts with little real guidance. Indeed, as is often the case, the Court will be accused of leaving the area in a muddle. While clarifying a bit by ruling out the most extreme restitution theory, the Court says that it is not necessary to create a more concrete test other than the following elements:

There are a variety of factors district courts might consider in determining a proper amount of restitution, and it is neither necessary nor appropriate to prescribe a precise algorithm for determining the proper restitution amount at this point in the law’s development. Doing so would unduly constrain the decision makers closest to the facts of any given case. But district courts might, as a starting point, determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images (excluding, of course, any remote losses like the hypothetical car accident described above, see supra, at 10), then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses. These could include the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether thedefendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role. See Brief for United States 49.

These factors need not be converted into a rigid formula, especially if doing so would result in trivial restitution orders. They should rather serve as rough guideposts for determining an amount that fits the offense. The resulting amount fixed by the court would be deemed the amount of the victim’s general losses that were the “proximate result of the offense” for purposes of §2259, and thus the “full amount” of such losses that should be awarded. The court could then set an appropriate payment schedule in consideration of the defendant’s financial means. See §3664(f)(2).

Having dealt with such cases in the past, I fail to see how a court could come up with a figure with any reliability under this approach. Factoring the level of past views, let alone all future views, invites an arbitrary determination. Moreover, it suggests that the damages might be much higher if a defendant is one of a few viewers (at this time) as opposed to looking at a popular image of child pornography. It would be up to the court to estimate if a new image is likely to “catch on.” It also suggests that early defendants nailed for restitution could pay the lion’s share of damages while later views would come at a fraction of that cost. The Court itself recognizes that recovery may be “piecemeal” and clearly does not favor the large awards secured in the past. The majority simply says that the restitution “would not be severe, but it would not be token.”

The dissent by Chief Justice Roberts (joined by Thomas and Scalia) is an equally interesting read. Roberts cautions how the desire to make a victim whole may blind the Court to the practical or legal flaws:

The Court is correct, of course, that awarding Amy no restitution would be contrary to Congress’s remedial and penological purposes. See ante, at 20. But we have previously refused to allow “policy considerations” including an “expansive declaration of purpose,” and the need to “compensate victims for the full losses they suffered” to deter us from reading virtually identical statutory language to require proof of the harm caused solely by thedefendant’s particular offense.

Roberts says that there are simply some injuries that cannot be quantified in this fashion:

Amy has a qualitatively different injury. Her loss, while undoubtedly genuine, is a result of the collective actions of a huge number of people beginning with her uncle who abused her and put her images on the Internet, to the distributors who make those images more widely avail- able, to the possessors such as Paroline who view her images. The harm to Amy was produced over time, gradually, by tens of thousands of persons acting independently from one another.3 She suffers in particular from her knowledge that her images are being viewed online by an unknown number of people, and from her fear that any person she meets might recognize her from having witnessed her abuse. App. 59–66. But Amy does not know who Paroline is. Id., at 295, n. 11. Nothing in the record comes close to establishing that Amy would have suffered less if Paroline had not possessed her images, let alone how much less. See Brief for United States 25. Amy’s injury is indivisible, which means that Paroline’s particular share of her losses is unknowable. And yet it is proof of Paroline’s particular share that the statute requires.

Notably, this would indicate that the Court was more lopsided than the vote count would indicate. In reality, some eight justices felt that restitution should either be small (5) or zero (3). Only Justice Sonia Sotomayor called for the full restitution. I found her opinion the least compelling, including her analogy to a gang rape case which is manifestly different from this circumstance in my view. Sotomayor however defended the analogy:

individuals need not act together to trigger joint and several liability; such liability applies equally to multiple actors who independently commit intentional torts that combine to produce an indivisible injury. Infra, at 11–14. And in any event, the offenders at issue in this case do act together, with the common end of trafficking in the market for images of child sexual abuse. See infra, at 12–13. While these offenders may not be physically in the same room when they commit their crimes, there is no reason to read §2259(b)(4)’s “mandatory” restitution command out of the statute for child abusers who hide behind the anonymity of a computer screen.

Obviously, I have long opposed restitution under the rationales of the prior rulings and in that sense I share many of the concerns raised by the Roberts dissent.

Here is the opinion: Paroline v US

29 thoughts on “Supreme Court Vacates Jane Doe Child Pornography Restitution Case”

  1. hskiprob the corporation cant and wont answer you because there is NO SUCH LAW. go to youtube and watch the videos of the many many FORMER IRS AGENTS who quit because they could find no such law. and received no answers from their bosses.. thus they did their own research. and found the true answer. the answer is that taxes were put into place solely for the rich to help the poor and middle class obtain their vision of the american dream.. of course while keeping the people distracted with wars, attacks, and phony scandals they quietly changed or added new laws and statues onto the books. just as the federal reserve is a illegal agency so is the irs.

    Just think if the world stood up as one and refused to file taxes what exactly could the irs do ? they can’t imprison everyone at once so they keep the people scared by jailing one or two people. stealing their homes, cars and businesses. all the people need to do is stop and think.

    once you pay off your mortgage or lease on the car. it should be yours to do with as you please. dont pay those taxes on your property and the corporation will come in and snatch it right from you…. thats why they hate all those who know the truth the truth being the corporation has been hiding as a government for hundreds of years now…

  2. If anyone has a child porn photo on their computer is guilty of a crime then there are some precautions to take in life. First, never buy a used computer at Goodwill. It could be no-good. Two, never open an email. It might have a felony attachment.
    As to the second issue. There is a device or download as they call it, that will allow one to send an email with an attachment secreted therein. We could all send Justice Kennedy some child porn and then demand a search of his computer in a year or so when he boards a plane for Bermuda or some place.

    There are photos of the Holocaust posted all over the internet. Do we each owe the victims’ families restitution because we view photos of Nazis killing people in the gas chambers and burning their bodies in the ovens? Does viewing the crime scene make us part of the crime? I think not. But, I don’t always recall what I think.

  3. Sad case. Excellent analysis. (Generally) intelligent comments/replies. This is why I subscribe.

    My two cents: Separating our emotions (i.e., sympathy, anger, lust for revenge) from our intellect (i.e., interpreting centuries-old law) is very, very difficult. Intellectually, I agree with the Court’s decision: there are too many “degrees of separation” (my words) between the victim and the criminal. Emotionally, I cry for the girl, rage at the criminal, and hope the uncle burns in hell.

    I don’t always agree with the Court. But I can’t fathom how much discipline it takes them to keep separate their emotion from their intellect.

  4. Only Justice Sonia Sotomayor called for the full restitution. I found her opinion the least compelling, including her analogy to a gang rape case

  5. In common law there must be an accuser (in most cases the prosecutor is the accuser which is hearsay). If there is evidence against the uncle, he should be indicted for the abuse and the victim that was damaged be made whole again. If this information went out on the computer, it is hard to determine the intent of the receiver or even if it was unsolicited. I am sure that many pornographers are on record and laws are already passed that are not enforced.

  6. I think they got it right this time, but I sure wish they’d start calling me ahead of time so I can tell them how I feel and how they should decide on any given issue beforehand. But they never call.

    1. Rcampbell – if they start calling you ask them to call me too, I would like to give my input. Some of these decisions have been disappointing.

  7. Paul Schulte

    Only one of the justices likened it to a gang rape. In this case the defendant did not know her and had never seen her, except for the two pictures.

    You meant gang ape right?

    In cases of the gang ape, de sent is de evangelist … a.k.a. the High Priest In Chief.

    Know herr in biblical terms.

  8. I believe the opinion of the Court was correct, but I also see where drawing the line can be difficult emotionally for many.

    The same can goes the other way as well. Many people are having their property confiscated, wages garnished and being put in prison, due to a situation where the government has refused to answer questions relating to the IRS Code and the alleged unlawful enforcement of the Federal Individual Income Tax.

    If there is such a law, why wouldn’t the IRS just answer the questions and give them the Federal Statute and when it was passed into law. That’s what they were basically asking in the Petition for Redress of Grievances and that the government refused to answer.

    I would like to ask three questions:
    1. Why is there a right to petition under the 1st Amendment, if no one in government can be required to answer or respond to a Petition. That is what the court said.

    2. Is this an unlawful abrogation of the Constitution.

    3. Are we all acquiescing to a law that doesn’t even exist, thus placing our fellow citizens in financial and physical jeopardy?

    We tax the lower socio-economic levels of our society to such degrees that they will never get out of poverty, except by either luck or criminality and then we wonder why there is so much crime and violence.

  9. The Who: What’s that song, see me, feel me, touch me……

    Pete Townshend had been arrested, after he used a credit card to view a child porn website as part of personal research while writing his autobiography. Townshend claimed he had been sexually abused as a child himself.

    “The police have unconditionally accepted that these were my motives in looking at this site and that there was no other nefarious purpose,” said Townshend in an official press statement. “I accept that I was wrong to access this site and that by doing so, I broke the law.” He addressed the topic further in his 2012 autobiography, ‘Who I Am.’

    “I was trying to prove that credit card companies were taking money for child porn websites”. “I didn’t enter a website, I didn’t look at images. A couple of us were campaigning and we gave it up in the end because it seemed so futile.”

    Townshend was, however, placed on a national register of sex offenders by London’s Metropolitan Police due to his refusal to to go to court. “A forensic investigator found that I hadn’t entered the website, but nonetheless, by the time the charges came to be presented to me, it was five months…I was exhausted. I felt that if I went to court I would be offering myself up for sacrifice.”

  10. Mr. Raff,

    I was thinking of this more in the area of joint and several liability. I think the court got it right with the but for in torts. It is my understanding that a victim may still recover but there needs to be a proximate cause nexus.

    The way it was define at first, one is liable for the whole and let them go after the other tortfeasors as they have been made whole.

  11. ” If they are trading pictures, and I do not know that is the case here, how do you set monetary damages?”

    From my point of view:
    Any damages/hurt to the subjects of the image is not related to any monetary value that might be placed on the images. The damage is the actual abuse.
    Knowledge that the images exist may add further to the hurt felt by the victims.
    The setting of monetary damages is an actuarial exercise.

    What matters is that even if the images were traded or exchanged without cost, there was a demand for such images, and that was a driver for the production of such images.
    In order to exchange even for free, the images have to be produced in the first place so that they can be traded for others.
    Any consumers of such images therefore bear responsibility for the original abuse.

  12. A 14 old law, “violence against women act” past in 1994?
    The gateway to a payoff. No profit from sales, no compensation.
    What about little boys? No can do. Unless you were an alter boy.

    1. Only one of the justices likened it to a gang rape. In this case the defendant did not know her and had never seen her, except for the two pictures.

  13. The Supreme Court dealt with a subject that courts have long wrestled with: “The rules of the Uniform Apportionment of Tort Responsibility Act reconcile the inherent conflicts in the uneven development of comparative fault doctrine and the problems of multiple tortfeasors. It is a useful addition to the law in every state.” (Uniform Law Commission).

  14. From an economic standpoint, demand drives supply. I think they got it wrong. But, I had a wife who had to deal w/ this vile stuff writing presentences for these animals. It took a toll on her. So, I’m very biased.

    1. My understanding of this comes only from reading articles like “Child Porn Ring Broken Up, 50 People Arrested” etc. However, from reading those articles, I was led to believe that they traded pictures. If they are trading pictures, and I do not know that is the case here, how do you set monetary damages?

  15. I think it’s quite simple:

    If the basis of any part of the production and distribution of such images is commercial, then all buyers are responsible for the abuse. They create a demand for such images.

    Even if the uncle posted the images purely for bragging rights as opposed to finacial gain, the viewers still bear responsibility. The kudos only arises if the viewers exist.

  16. One thing I know, these students are courageous to try to figure out what the Supreme Conservative court will do.

    As was the case sometimes in Supreme Liberal courts of the past.

    That exercise will help the law students to see the reality they are likely to deal with in their practice of their profession after graduating.


  17. After reading what was available of the decision, I agreed with Roberts more than the others. I am glad I am not the lower court judge that is going to have to decide this.

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